Should All Rapists Go to Prison?

"I was also experiencing a weird taste when I slept," she recalled in an essay for Time back in July. "It was very bitter, like that lingering awfulness in your mouth when you don't get an aspirin down in the first swallow." Boardman then began to experience the same taste in her drinks; she thought something must be wrong with her health.

Then Boardman woke up one night with her husband, David Wise, standing over her, trying to conceal the vial of Xanax he was attempting to administer to her while she was unconscious. Wise assured Boardman that he was only trying to help her sleep, and when she told him stop he agreed that he would. Though for the next two years Wise would continue his attempts to drug his sleeping wife. The reason why remained with Wise alone, even as Boardman kept confronting him, begging him to stop. "He always had a way to make me believe that he would stop, that he was just looking out for my best interest," she wrote.

The abuse continued until 2008, when Boardman found her husband's phone. According to court documents, she discovered three videos: one depicted Wise raping her while she was drugged and unconscious; the two others showed her husband forcing her to engage in oral sex. This was the first time she had any knowledge that this was what was happening to her while she slept. After the couple divorced in 2009, she took the videos to the police.

In the spring of 2014, in the State of Indiana v. David Wise, Wise was convicted of rape and five felony counts of criminal deviate conduct. Each charge carried a sentence of 20 years, and the prosecutor in the trial went after a 49-year sentence. However, the outcome of the trial was such that Wise didn't even up spending a minute in prison: Judge Kurt Eisgruber sentenced Boardman's rapist to eight years house arrest and told the Indiana mother of two to "figure out a way to forgive him."

Wise did end up in prison, eventually, but it was for violating the terms of his home detention, not for brutally drugging and raping his wife. And in less than a year—over this past summer—Wise was released from prison through Indiana's Community Transition Program for "good" behavior.

"I'm always scared to think that I might run into him. He only lives 20 minutes away from me. He could be in the same shopping center that I'm shopping in. He could be close to me. We could be driving next to each other on the street. Every time I see a car that was like his, I tense up and I get scared. I'm terrified that I'll run into him," Boardman said last week, in her first interview since Wise's release.

It also continues to be a blow to sexual assault victims for whom the ruling sent a message that rape is not a serious crime. Indiana has the highest rate of teenage sexual assault in the US, and Indiana's only sexual assault clinic shut down last summer. Up until seven months ago, the state's statute of limitation on rape was 5 years. In the beginning of last year, this enabled Bart Bareither, a confessed rapist, to walk out of a police station without being charged for raping a young woman in 2005.

Though it's rare, in Indiana—and across the US—declining to send a convicted rapist to prison is completely within the law and the powers of a judge. "Judges in Indiana, like in a lot of states, have pretty broad authority to suspend prison sentences and propose probation or house arrest as an alternative," Associate Professor Ryan W. Scott of Indiana University's Maurer School of Law told Broadly over the phone. "Essentially, a convicted felon won't serve the prison sentence as long as they comply with the terms of their house arrest." Scott explained that the State considers this practice an important part of keeping prison populations under control, but, in Boardman's case, Eisgruber's discretion neglected a victim of rape and handed a "get out of jail free card" to a convicted rapist.

Across the nation, suspended sentences are fairly common. A judge's ability to suspend a sentence is only curtailed for certain crimes that require a mandatory minimum sentence. In Indiana, all sentences can be suspended except in the case of murder and in the case criminals who commit a level two or three felony with a prior unrelated felony.

Federally, crimes that carry mandatory sentences include drug-related offenses as benign as distributing marijuana, illegal food stamp activity, and harboring an immigrant. Serious crimes like murder, child pornography, and identity theft also carry mandatory minimum sentences—but not rape. In other words, a person who participates in "illegal food stamp activity" is guaranteed to see prison for at least a year, whereas a convicted rapist is not. Should rape have guaranteed consequences?

"It's definitely out of whack that you can suspend a sentence for rape, and you can't for drug distribution," says Scott.

Scott Berkowitz, the president and founder of RAINN, says that the biggest problem regarding rape and the law is that most cases don't even make it to trial to begin with, and an outcome like one in the State of Indiana v. David Wise contributes to the atmosphere that discourages sexual assault victims from stepping forward. "A case like like this is particularly frustrating because it sounds like everybody did everything right—the victim was courageous, the police did their job, the prosecutor did their job—until the judge decided to do a bad job. I don't think there are a huge number of cases where the judges are departing that much from guidelines by that much, but I do think that certainly the appropriate punishment for a rape conviction should be substantial jail time."

Since the conclusion of Wise's rape trial the sexual assault laws in Indiana have been changing for the better. Republican State Senator Michael Crider authored and passed a bill that eliminates the statute of limitations in a rape case when new DNA evidence is introduced or a confession takes place. He is also currently working on a bill that would allow domestic violence victims to collect the insurance on property that their spouse has destroyed. Despite all this, however, a rapist can escape jail time at the whim of a judge both in the state of Indiana and elsewhere across the US.

"As legislators we can try to tweak the law, we can try to give the courts guidance, but ultimately we're not the ones that make the findings," says Sen. Crider.

A 2013 study from the Bureau of Justice Statistics, a sub-agency of the Department of Justice, looked at all the felony defendants in the largest urban counties in the US. They found that, of those who were convicted of rape, a total of 11 percent of defendants did not face incarceration. Of that 11 percent, eight percent received probation and, the study notes, three percent received "other," which could mean fines, community service, restitution, or treatment.

"It's already hard to understand why anyone convicted of felony rape could walk away without being incarcerated, much less why the alternate punishment would be community service, instead," said Patrick Fergusson of RAINN.

Factoring in unreported rapes, RAINN reports that only 2 percent of rapists will serve a day in prison—maybe it's time that changed.